Sparger v. Worley Hospital, Inc.

SAM D. JOHNSON, Justice

(dissenting).

This dissent is respectfully submitted.

As early as Moore v. Ivey, 264 S.W. 283 (Tex.Civ.App.—Galveston 1924), rev’d on basis of jury misconduct, 277 S.W. 106 (Tex.1925), Texas courts have indicated that a surgeon was negligent as a matter of law if a sponge or other foreign object was left in the patient. See McKinney v. Tromly, 386 S.W.2d 564 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.); Thompson v. Barnard, 142 S.W.2d 238 (Tex.Civ.App.—Waco 1940), aff’d, 138 Tex. 277 , 158 S.W.2d 486 (1942).

Language in McKinney v. Tromly, supra, reveals that the court’s decision was not based only on a finding that the facts established as a matter of law that the surgeon had the right to control the nurse. The court quoted with approval the following language from Aderhold v. Bishop, 94 Okl. 203 , 221 P. 752 (1923):

“ ‘We can conceive of no instance in which the application of the doctrine of respondeat superior could exercise a more salutary influence than in cases of damage arising out of surgical operations. The patient is helpless under the influ *587 ence of an anaesthetic, and absolutely at the mercy of the surgeons performing the operation, and they are charged with the duty to see that no preventable injury results to their patient. * * * If the operating surgeons were not made liable for the negligent performance of the duties of those working under him, the law in a large measure would fail in affording a means of redress for preventable injuries sustained from surgical operations.’” 386 S.W.2d 564 at 565-66 . [Emphasis added.]

This language implies that a surgeon may be liable for the negligence occurring in the operating room. This responsibility appears to be a conceded fact in many if not most instances. Webb v. Jorns, 488 S.W.2d 407, 411 (Tex.1972). The special relationship that exists between the surgeon and the patient in the operating room justifies the imposition of such liability.

This special relationship arises from the conscious selection by the patient of a particular surgeon, the reliance by the patient on the skill and judgment of the surgeon, the inability of the patient to control any of the actions occurring during surgery, the expectation that the surgeon selected will control the operation, the patient’s expectation that the surgeon will require the operating room personnel to follow proper medical procedures, the expectation that the surgeon will protect the patient from the negligence of the operating room personnel, and the responsibility accepted by the surgeon to require the application of proper medical procedures and to exclude unqualified personnel from the operating room. This special relationship is not the only justification for the imposition of liability on the surgeon for negligence in the operating room. The knowledge of such potential liability will prompt the surgeon to initiate every possible safeguard to prevent negligence in the operating room.

Whether the doctrine is known as “captain of the ship” or by some other label, this writer would hold that a surgeon may be liable for any negligence occurring in the operating theater. Liability may be imposed on the theory that the surgeon had the right to control the negligent individual or, if there was no right to control, on the theory that the surgeon was negligent in failing to insist on the right to control.

Rather than retain the historic position of this state, that of the courts of civil appeals in Harle v. Krchnak, 422 S.W.2d 810 (Tex.Civ.App.—Houston [1st Dist.] 1967, writ ref’d n. r. e.), and McKinney v. Tromly, supra, the majority asserts that the surgeon may be held liable as a matter of law only if the facts necessarily lead to the conclusion that the operating surgeon had the right to control the nurses during the course of the operation.

Even applying the standard adopted by the majority, an examination of the evidence in the instant case leads inevitably to the conclusion that the operating surgeon, Dr. Sparger, as a matter of law had the right to control the actions of the nurses with respect to the sponge counts during the course of the operation. Indeed, in the opinion of this writer, such evidence is overwhelming.

With respect to his relationship with the nurses, Dr. Sparger testified as follows:

“Q And during the course of the operation, or the course of treatment or operation, the Surgeon is in charge of the patient?

“A In charge of all the medical aspects of the patient.

“Q And you issued orders to the Nurses in connection with the care and treatment of the patient, and they are supposed to follow them?

“A In regard to the medical aspects.

“Q Now, in connection with an operation, a Surgeon issues orders to the Nurses during the operation, does he not?

“A Correct.

“Q And they are supposed to follow them?

“A Yes, sir.

“Q And you are supposed to tell the Nurses what to do, and what not to do?

*588 “A Correct, in regard to the medical aspects.

“Q You certainly wouldn’t want a janitor, or a typist, or somebody, or a clerk up there, helping you in the Operating Room, would you?

“A No, sir.

“Q You want a Registered Nurse, don’t you?

“A As far as the circulation, yes.

“Q And you want somebody that has had experience, and has had training?

“A That is true, and it is a requirement.

“Q And do you know the Nurses, or did you know the Nurses before you went to Worley Hospital that were assisting you in this operation?

“A Yes, sir.

“Q That is Mrs. Ensey, and Mrs. Holland?

“A Yes.

“Q And you don’t question their ability in any way, or their capabilities, do you?

“A No.

“Q Now, you have also told us that you did not ask either Mrs. Ensey or Mrs. Holland for a sponge count, but that they voluntarily gave you one, is that correct?

“A That’s right, at the time of the procedure.

“Q All right. And — but if they didn’t voluntarily give you one, you would have certainly asked for one, wouldn’t you?

“A Correct.

“Q All right. Now isn’t it true that your judgment controls the surgical process from the beginning to end during an operation?

“A The medical aspects of the operation.

“Q If there is any conflict or disagreement in judgment between you and somebody else, including the Nurses, or even Dr. Bellamy, who is assisting you, your judgment would control, would it not?

“A If there is any conflict, that is true, if there is any conflict—

“Q Yes. That’s right. In other words, you are in charge of the operation, and everybody is supposed to do what you tell them?

“A That’s right, medically speaking.”

[Emphasis added.]

Dr. Sparger also testified that he requested a sponge count after closing the peritoneum but prior to closing the skin. With respect to the sponge counts, Mrs. Ensey, the operating room technician, testified as follows:

“Q Now, do you know whether the hospital Regulations required another count after [the time that Dr. Spar-ger had begun to close the peritoneum]?

“A No, I don’t think they did. I am sure they didn’t, . . .”

Mrs. Ensey also testified regarding the relationship between the nurses and Dr. Sparger:

“Q Are you instructed to follow the doctors’ orders at all times?

“A Yes.

“Q Do you follow them?

“A Yes. I try my best.

“Q And you are supposed to follow all the orders he gives you?

“A Yes.

“Q And he tells you what to do and what not to do?

“A Yes.”

Mrs. Holland, the operating room supervisor and a registered nurse, testified as follows:

“Q All right. Then when we got down — when we got down to this second count that you made at the peritoneum, that you have told us about, one, you counted when they *589 came out of the bucket, and you counted them on the floor with Mrs. Finney, neither one of those doctors directed you to do that?

“A No, sir. It is accepted that you do that.

“Q Neither one of those doctors ordered you to do that?

“A You just know they expect it of you.

“Q Well, I am asking you, did either one of those doctors order you to do that?

“A No.

“Q All right. In fact, those Orders and Regulations that control you in that work come from your Worley Hospital Regulations, don’t they?

“A Well, the doctors just expect you to have a sponge count for them. It is just the way they expect it. .

“Q Now, in connection with the Operating Room, is the Surgeon, who is performing the operation, is he supposed to give you orders as to what to do, and know what not to do?

“A Yes, sir.

“Q And you are supposed to follow those orders?

“A Yes, sir.

“A Without question?

“A Yes, sir.” [Emphasis added.]

It is undisputed that the Hospital had established standard procedures to be followed by the nurses in the operating room. However, it is obvious that Dr. Sparger had the right to alter the procedures followed by these nurses in this case, and did in fact alter the procedures by requesting a second sponge count.

From the testimony of both the surgeon and the nurses, it is inconceivable that the nurses would have refused to obey an order issued during the course of the operation by the operating surgeon, Dr. Sparger, on the grounds that it conflicted with procedures set forth by the Hospital.

The facts therefore establish as a matter of law that, as to the nurses, the operating surgeon, Dr. Sparger, not only had the right to control but also exercised such control during the course of the operation. The majority asserts: “The state of the facts may in some cases be such as to make one a surgeon’s employee or borrowed servant as a matter of law, but that is not the factual situation before us in this case.” With all due respect, such is precisely the situation before us in this case, and the quoted testimony makes that fact crystal clear. Under the majority’s own standard, during the course of the operation the nurses were the operating surgeon’s borrowed servants as a matter of law and the operating surgeon is therefore liable for their negligence.